Hariom S/O Babulal Meena vs Union Of India
2022 Latest Caselaw 9162 Guj

     C/SCA/21189/2022                            ORDER DATED: 17/10/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 21189 of 2022

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                        HARIOM S/O BABULAL MEENA
                                  Versus
                             UNION OF INDIA
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Appearance:
MS HARSHAL N PANDYA(3141) for the Petitioner(s) No. 1
MR. NIKUNT RAVAL for the Respondent(s) No. 1,2,3
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 CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
       and
       HONOURABLE MS. JUSTICE NISHA M. THAKORE

                             Date : 17/10/2022

                        ORAL ORDER

(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)

1. Draft amendment is allowed. Necessary amendment shall

be carried out today itself.

2. Notice returnable forthwith. Mr. Nikunt Raval, learned

Senior Standing Counsel waives service of notice for and on

behalf of respondents.

3. The challenge in this petition is to the order of the Central

Administrative Tribunal, Ahmedabad in Original Application

No.362 of 2022 on the ground of challenge of Circular dated

20.09.2018 and the same having been upheld by the Apex

Court in case of S.K. Nausad Rahaman & Ors. Vs. Union of

C/SCA/21189/2022 ORDER DATED: 17/10/2022

India & Ors reported in AIR 2022 SC 1494. The original

application is disposed of with the observations that the

representation if made by the applicants regarding the

grievance is within one month before the competent authority,

the same shall be decided as per the law in light of the

judgment of the Apex Court within two months from the

receipt of the representation.

4. Prayers of the present petition are as follows:

"A. That the Honourable Court may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction to the respondent-authorities and,

B. Be pleased to allow the present petition, and

(i) quash and set aside the order dated 21.09.2022 passed by the Ld. Central Administrative Tribunal in OA No.362 of 2022, impugned in this petition, and

(ii) further be pleased to direct the respondent authorities to continue the petitioner in his present Commissionerate till new policy decision is taken by the Central Board of Indirect Taxes and Customs as directed by the Hon'ble Apex Court in judgment dated 10.03.2022 in Civil Appeal No.1243 of 2022, and further be pleased to examine and consider the case of each petitioner in light of directions given in

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judgment dated 10.03.2022 keeping in mind the terms and conditions of his Inter-Commissionerate Transfer as well as fact that more than five to six years, he has been serving in present commissionerate, and

(iii) pending admission and final disposal of this petition, the Honourable Court may be pleased to stay the order dated 21.09.2022 passed by the Ld. Central Administrative Tribunal in OA No.362 of 2022, and/or direct the respondent authorities to maintain status quo, and/or

(iv) grant any other relief or pass any other order, which the Honourable Court may consider as just and proper in the facts and circumstances of the case."

5. We have heard the learned advocate Ms. Harshal Pandya

for the petitioner and learned Senior Standing Counsel Mr.

Nikunt Raval for the respondents. It was made clear at the

outset, we are deciding the matter finally considering the

limited scope after the decision of the Apex Court.

6. The brief facts leading to the present petition are as

follows:

After due process of selection conducted by the Staff

Selection Commission on the post of Inspector, present

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petitioner got selected. This was in pursuance of the Central

Excise and Customs Department Inspector (Group-C posts)

Recruitment Rules, 2002. On his selection, the Cadre

Controlling Authorities (for short "CCA") of Chennai Zone

issued order of appointment after completion of certain

process and the petitioner was appointed as Inspector of the

Central Board of Indirect Taxes and Customs.

7. The new Recruitment Rules came to be introduced in the

year-2016 governing the service conditions of the cadre of

Inspector (Central Excise). It is his case that he was since

recruited pursuant to Recruitment Rules, 2002, his

appointment is governed by the Rules of 2002. The

applications for ICT were submitted by the petitioner much

before publication of new Recruitment Rules and he applied

twice or thrice and finally, the Vadodara Zone was considered

in the year-2017. Circular dated 20.09.2018 is in challenge

whereby it has been decided only in exceptional circumstances

depending on merit of each case, ICT may be allowed on loan

basis alone and that too for three years which is extendable for

another two years depending on the administrative

requirements.

C/SCA/21189/2022 ORDER DATED: 17/10/2022

7.1 Instead of applying these conditions prospectively, the

Board has held that the inter commissionerate transfers which

took place after 26.12.2016 as invalid and treated those

transferees on loan basis, and therefore, as a resultant effect

the petitioners who came in the new zone accepting conditions

of transfer and are settled in new area with their family are

ordered to be transferred back to their parent

commissionerate.

8. The challenge has been made in Original Application

No.362 of 2022 seeking the quashment of the Circular dated

20.09.2018 or alternatively to apply the circular prospectively.

9. The Tribunal passed the following order:

Heard Mr. Alphus Rockey, learned counsel for the applicant.

In this OA, the applicant prays to permit him to submit representation before the competent authority and sought a direction to the competent authority to decide his representation within a fixed time.

The permission of this Tribunal is not required for submitting a representation before the competent authority. Since this OA is based on the above single prayer, the same is devoid of merits. The competent authority is under obligation to act in accordance

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with the law keeping in the light of the judgment passed by the Hon'ble Apex Court in the matter of S.K. Naushad Rahaman & Ors. v/s. Union of India & Ors. in Civil Appeal No.1243/2022, decided on 10.03.2022.

This OA is disposed of accordingly.

10. The decision of Apex Court in case of S.K. Nausad

Rahaman & Ors. Vs. Union of India & Ors reported in AIR

2022 SC 1494 considered the very circular and upheld the

same. Some of the findings and observations, which are

relevant in this regard shall need to be reproduced:

32. There is a fundamental fallacy in the submission which has been urged on behalf of the appellants. Administrative instructions, it is well-settled, can supplement rules which are framed under the proviso to Article 309 of the Constitution in a manner which does not lead to any inconsistencies. Executive instructions may fill up the gaps in the rules. But supplementing the exercise of the rule making power with the aid of administrative or executive instructions is distinct from taking the aid of administrative instructions contrary to the express provision or the necessary intendment of the rules which have been framed under Article 309. RR 2016 have been framed under the proviso to Artilce 309.

Rule 5 of RR 2016 contains a specific prescription that each CCA shall have its own separate cadre. The absence of a provision for filling up a post in the

C/SCA/21189/2022 ORDER DATED: 17/10/2022

Commissionerate by absorption of persons belonging to the cadre of another Commissionerate clearly indicates that the cadre is treated as a posting unit and there is no occasion to absorb a person from outside the cadre who holds a similar or comparable post.

34. Rule 5 of RR 2016 postulates that each CCA has a separate cadre and does not contain a provision for bringing in, by way of absorption, persons from outside the cadre. Inducting persons from outside the cadre by absorption requires a specific provision in the subordinate legislation for the simple reason that the concept of a cadre would otherwise militate against bringing in those outside the cadre. That is the reason why Rule 4(ii) of the erstwhile RR 2002 contained a specific provision to this effect. That provision has however not been included when RR 2016 were framed. If the authority entrusted with the power of framing rules under Artilce 309 of the Constitution did so on the ground that the provision was subject to misuse and was contrary to the interests of the administration, no employee can assert a vested right to claim an ICT.

39. The above tabulation indicates that the proposal which was under consideration was the provision for Inter-Commissionerate deputation without deputation allowance. This was suggested for deletion. DoPT observed that such a provision is generally not made in the recruitment rules and thus, the proposal may be agreed to. But apart from this, the Department of

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Revenue did not deem it fit to adopt the specific provision which was contained in Rule 4(ii) of RR 2002 under which absorption of persons from other cadres was envisaged at the Commissionerate level, when Rule 5 of RR 2016 was framed. In the absence of a specific provision to that effect, an employee from outside the cadre under the control of a CCA cannot claim an ICT based on executive instructions. The executive instructions which have been issued by DoPT in the form of OMs will not prevail over RR 2016 which have been framed under the proviso to Article 309. Similarly, the instructions which were issued by the Department of Revenue on 27 March 2009, relaxing the ban on ICT, which was imposed on 19 February 2004 and the subsequent instructions dated 27 October 2011 were issued at the time when RR 2016 were yet to be framed. These instructions will not govern or prevail when the regime envisaged under RR 2016 came into force.

42. For the above reasons, we have arrived at the conclusion that the High Court was justified in coming to the conclusion that:

(i) RR 2002 contained a specific provision for ICTs;

(ii) There is an absence of a provision comparable to Rule 4(ii) of RR 2002 in RR 2016;

(iii) On the contrary, Rule 5 of RR 2016 specifically stipulates that each CCA shall have its own separate cadre unless directed by the CBEC;

(iv) Any ICT would violate the unique identity of each cadre envisaged in Rule 5;

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(v) Any ICT order would transgress a field which is occupied by the rules which have been framed in terms of the proviso to Article 309 of the Constitution;

(vi) The circular dated 20 September 2018 makes it absolutely clear that RR 2016 do not have any provision for recruitment by absorption and no ICT application could be considered after the coming into force of RR 2016;

(vii) Transfer is a condition of service and it is within the powers of the employer to take a policy decision either to grant or not to grant ICTs to employees; and

(viii) The power of judicial review cannot be exercised to interfere with a policy decision of that nature.

43. The realm of policy making while determining the conditions of service of its employees is entrusted to the Union for persons belonging to the Central Civil Services and to the States for persons belonging to their civil services. This Court in the exercise of judicial review cannot direct the executive to frame a particular policy. Yet, the legitimacy of a policy can be assessed on the touchstone of constitutional parameters. Moreover, short of testing the validity of a policy on constitutional parameters, judicial review can certainly extend to requiring the State to take into consideration constitutional values when it frames policies. The State, consistent with the mandate of Part III of the Constitution, must take into consideration constitutional values while designing its policy in a manner which enforces and implement those values.

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48. This Court has spoken about the systemic discrimination on account of gender at the workplace which encapsulates the patriarchal construction that permeates all aspects of a woman's being from the outset, including reproduction, sexuality and private choices, within an unjust structure. The OMs which have been issued by DoPT from time to time recognized that in providing equality and equal opportunity to women in the workplace of the State, it becomes necessary for the Government to adopt policies through which it produces substantive equality of opportunity as distinct from a formal equality for women in the workplace. Women are subject to a patriarchal mindset that regards them as primary caregivers and homemakers and thus, they are burdened with an unequal share of family responsibilities. Measures to ensure substantive equality for women factor in not only those disadvantages which operate to restrict access to the workplace but equally those which continue to operate once a woman has gained access to the workplace. The impact of gender in producing unequal outcomes continues to operate beyond the point of access. The true aim of achieving substantive equality must be fulfilled by the State in recognizing the persistent patterns of discrimination against women once they are in the work place. The DoPT OMs dated 3 April 1986, 23 August 2004, 8 July 2009 and 30 September 2009 recognised the impact of underlying social structures which bear upon the lives of women in the work place and produce disparate outcomes coupled with or even

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without an intent to discriminate. The provision which has been made for spousal posting is in that sense fundamentally grounded on the need to adopt special provisions for women which are recognized by Article 15 (3) of the Constitution. The manner in which a special provision should be adopted by the State is a policy choice which has to be exercised after balancing out constitutional values and the needs of the administration. But there can be no manner of doubt that the State, both in its role as a model employer as well as an institution which is subject to constitutional norms, must bear in mind the fundamental right to substantive equality when it crafts the policy even for its own employees.

49. The other ground of challenge which has been raised is that the impugned circular does not take into account the needs of disabled persons in the State's workforce. The Rights of Persons with Disabilities Act 2016 is a statutory mandate for recognizing the principle of reasonable accommodation for the disabled members of society. This obligation has been elaborated upon in several decisions of this Court including Vikash Kumar v. Union Public Service Commission and Others, Avni Prakash v. National Testing Agency and Others and Ravinder Kumar Dhariwal and Another v. Union of India and Others. In Vikash Kumar (supra), this Court observed that:

In the specific context of disability, the principle of reasonable accommodation postulates that the conditions which exclude the disabled from full and

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effective participation as equal members of society have to give way to accommodative society which accepts difference, respects their needs and facilitates the creation of an environment in which the societal barriers to disability are progressively answered. Accommodation implies a positive obligation to create conditions conducive to the growth and fulfilment of the disabled in every aspect of their existence -- whether as students, members of the workplace, participants in governance or, on a personal plane, in realising the fulfilling privacies of family life. The accommodation which the law mandates is "reasonable" because it has to be tailored to the requirements of each condition of disability. The expectations which every disabled person has are unique to the nature of the disability and the character of the impediments which are encountered as its consequence."

The formulation of a policy therefore, must take into account the mandate which Parliament imposes as an intrinsic element of the right of the disabled to live with dignity.

52. The circular dated 20 September 2018 has taken into account, what it describes "exceptional circumstances" such as "extreme compassionate grounds". Leaving these categories undefined, the circular allows for individual cases to be determined on their merits on a case by case basis, while prescribing that transfers on a "loan basis" may be allowed subject to administrative requirements with a tenure of three years, extendable by a further period of two years.

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While proscribing ICTs which envisage absorption into a cadre of a person from a distinct cadre, the circular permits a transfer for a stipulated period on a loan basis. Whether such a provision should be suitably enhanced to specifically include cases involving

(i) postings of spouses;

(ii) disabled persons; or

(iii) compassionate transfers, is a matter which should be considered at a policy level by the Board.

11. It is thus clear that the Apex Court upheld the decision of

the High Court of Kerala, the Court has left it open to the

respondent to revisit policy to accommodate the posting of the

spouses, the needs of the disabled and compassionate

grounds. This of course has been left within the domain of the

executive for ensuring that in the process, the constitutional

values under Articles 14, 15, 16 and 21 of the Constitution are

duly protected.

12. On inquiry, the learned Senior Standing Counsel Mr.

Nikunt Raval submits that policy has not been revisited as yet.

However, there being a mandate from the Apex Court, there

shall be such exercise, however, he is unable to specify the

time period during which, the same shall be re-formulated.

13. At the same time, learned advocate Ms. Pandya points

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out to this Court by way of the amendment which she has

moved today that without waiting for the request of the

petitioner to consider the representation as per the order of

Central Administrative Tribunal, authorities have initiated the

process of relieving the petitioner. She has also further urged

that the review before the Apex Court is pending in the Diary

No.17717 of 2022 filed on 02.06.2022 where the tentative date

given is of 18.10.2022 and the instructions are that most

probably it has been listed in today's board. She has also

further urged that the time period given by the Tribunal for

making the representation is not as yet over and relieving the

petitioner prior to this exercise would amount to disobeying

the order of the Tribunal, and therefore, there will be a

requirement of grant of stay.

14. Considering the directions issued by the Tribunal on the strength of the decision of S.K. Nausad Rahaman & Ors. Vs. Union of India & Ors reported in AIR 2022 SC 1494 and as this Court chooses not to interfere with the order impugned as there is nothing to find fault with the same, the respondent is required to be directed to wait for the period of 30 days to be over when the representation of the petitioner is expected to reach the respondent- authorities. Let the competent authority decide the same in accordance with the law as the time period given to it by the Tribunal for the said purpose is of

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two months. It is for the authority concerned to choose to decide it within the period convenient to it. However, before the expiry of one month period and before actually applying its mind and considering the request in accordance with law on examining the individual case of each petitioner, the respondent must not be in a hurry to relieve the petitioner. It is the discretion of the competent authority undoubtedly and yet, the mandate of judicial order deserves its due compliance.

15. We also make it clear that in the event of the individual case of petitioner not binding favour with the authority concerned, disposal of this petition shall not be construed as a denial of right to the petitioner if eventually either by way of review pending before the Apex Court or by way of the change in the policy as directed by the Apex Court any of the petitioner become entitled to the prayer at a future date which he has sought before this Court.

16. With the above directions, present petition stands disposed of.

17. Notice stands discharged.

(SONIA GOKANI, J)

(NISHA M. THAKORE,J) SUYASH